Changes to the Character and Fitness Rules

Amendments For a New Era

By: Kevin Bank and Emily Cooper

In June 2016, the Washington Supreme Court adopted significant amendments to the Admission and Practice Rules (APRs) relating to character and fitness proceedings.¹ The amendments were recommended for adoption by the WSBA Board of Governors following a thorough review of the rules by a work group convened in 2014.

The work group included a member of the Character and Fitness Board, representatives from the Board of Governors, a lawyer serving as both president of the Washington Attorneys with Disabilities Association (WADA) and the National Association of Attorneys with Disabilities, the executive secretary to the Governor’s Committee on Disability Issues and Employment, and WSBA staff. The co-authors of this article also served on the work group. ²

The work group convened to address whether the APR’s standards to assess applicants’ character and fitness to practice law, as well as some of the procedures used by WSBA admissions staff and the Character and Fitness Board, aligned with current thinking and legal interpretations of both federal and state law. The work group focused specifically on recent interpretations of the Americans with Disabilities Act (ADA) as they relate to bar admissions and on protections afforded under the Washington Law Against Discrimination (WLAD). ³ It reviewed the sections of the APRs addressing character and fitness, bar application questions, admissions procedures currently in use in Washington and a variety of other states, and a recent findings letter and settlement agreement between the U.S. Department of Justice (DOJ) and the Louisiana Supreme Court. ⁴

The DOJ letter and resulting settlement agreement focused primarily on Louisiana’s bar exam application questions and its conditional admission policies and procedures (Washington’s rules do not permit conditional admission). The work group examined the DOJ’s analysis of the Louisiana bar exam application questions and Louisiana’s other methods of obtaining information related to an applicant’s health diagnosis. At that time, similar bar exam application questions were being used by many other states, including Washington.

For instance, both Washington and Louisiana asked applicants whether they have been diagnosed with or undergone treatment for any mental health condition in the past five years and to state whether, if untreated, this condition would impact their ability to practice law. The DOJ’s view as expressed in its letter of findings to the Louisiana Supreme Court was that such questions improperly single out applicants with mental health conditions and “as currently written, appears rooted in unfounded stereotypes about individuals with these diagnoses, and is not appropriately tailored to assess the applicant’s current fitness to practice law.” ⁵

The DOJ also stated in the letter that requests for treatment records based solely on applicants identifying as either seeking treatment or having a mental health condition are prohibited by Title II of the ADA, which prohibits requirements “based on speculation, stereotypes, or generalizations about people with disabilities, rather than actual risks.” ⁶

The WSBA work group reviewed the letter and the settlement agreement to consider its broader implications for Washington’s bar exam questions and admissions procedures. For instance, the settlement agreement imposes limits on the types of inquiries the Louisiana Bar can make regarding an applicant’s health diagnosis and on access to the related treatment records. Although it allows for some inquiry into a current mental health or substance abuse condition/diagnosis that might impair the practice of law, it does not permit broad-based inquiries into past conditions. The settlement agreement does not, however, limit inquiries into an applicant’s past and present conduct that may impact the applicant’s ability to practice law. ⁷

In sum, inquiries about conduct are permitted, but ones about a health diagnosis or condition must be narrowly tailored. The work group worked with WSBA admissions staff to make interim modifications to questions on the admissions application, while it deliberated on broader changes to both the APR and the application. In early 2015, the work group submitted a recommendation to the WSBA Board to submit certain APR amendments to the Supreme Court to address the issues it considered. The proposed amendments were approved by the WSBA Board and submitted to the Court in April 2015. The Court published the proposed rules for comment in November 2015 and adopted the Rules on June 2, 2016. The amended APR became effective on Sept. 1, 2016.⁸

Applicants taking the winter 2017 bar exam will be the first in our state to use the modified bar application, and the amended APRs are already being used for current applicant for admission. This article highlights four primary changes: the character and fitness definition, how health or substance abuse inquiries are made, the bar application itself, and the policy prohibiting discrimination when making character and fitness determinations.

1 – Changes in the definition of “character and fitness”

The amended APRs, like the prior version, require that the applicant must show by clear and convincing evidence that “he or she is of good moral character and possesses the requisite fitness to practice law.”9 However, the definition of “fitness” has changed from one based on whether the applicant has a mental impairment that could impair his or her ability to practice law, to a conduct and behavior approach that focuses on whether the applicant meets enumerated essential eligibility requirements. The change in how fitness is defined represents a significant change in the APRs, both in terms of substance and organization. However, the change is consistent with the protections afforded under the state law against discrimination, which was originally codified in 1949 and extends to all disabilities, even perceived disabilities.¹⁰

Under the prior rules, fitness was defined as the “absence of any current mental impairment or current drug or alcohol dependency or abuse, which, if extant, would substantially impair the ability of the applicant, Bar Association member, or petitioner to practice law.”

In contrast, the amended rules define fitness as a record of conduct that establishes that the applicant meets essential eligibility requirements for the practice of law. ¹²

The essential eligibility requirements are defined as:

• The ability to exercise good judgment and to conduct oneself with a high degree of honesty, integrity, and trustworthiness in financial dealings, legal obligations, professional obligations, professional relationships, and in one’s professional business.

• The ability to conduct oneself in a manner that engenders respect for the law and adheres to the Washington Rules of Professional Conduct. • The ability to diligently, reliably, and timely perform legal tasks and fulfill obligations to clients, attorneys, courts and others.

• The ability to competently undertake fundamental lawyering skills such as legal reasoning and analysis, recollection of complex factual information and integration of such information with complex legal theories, problem solving and recognition, and resolution of ethical dilemmas.

• The ability to communicate comprehensibly with clients, attorneys, courts, and others with or without the use of aids or devices.

Similar factors have been used in other states that have adopted a conduct-based approach to fitness.

Although the definition of fitness has changed, good moral character continues to be defined as “a record of conduct manifesting the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibilities, adherence to the law, and a respect for the rights of other persons and the judicial process.” ¹³

The amended rules also maintain the approach whereby the Character and Fitness Board considers a list of factors to determine an applicant’s good moral character and fitness and then applies aggravating and mitigating factors. ¹⁴

However, there are no longer a separate set of factors that apply to cases involving drug or alcohol abuse or mental impairment. Examples of factors carried over from the prior rules are unlawful conduct, academic misconduct, making false statements on a bar application, employment misconduct, neglect of financial responsibilities, etc. Two new factors have been added, i.e, “conduct demonstrating an inability to meet one or more essential eligibility requirements for the practice of law,” replacing “evidence of a current substantial impairment, including without limitation, drug or alcohol dependency or abuse,” and “conduct that physically threatens or harms another person.” ¹⁵

The factors to be considered in aggravation and mitigation, such as recency of the conduct, applicant’s age at the time of the conduct, candor in the admissions process and before the Character and Fitness Board, materiality of any omissions or representations, and applicant’s attitude towards the misconduct, have not significantly changed. ¹⁶

2 – Changes regarding inquiries when substance

abuse issues arise in the admissions process It is not unusual for bar applicants to voluntarily disclose information about a health or substance abuse issue to explain past conduct. For example, an applicant might reveal that a severe episode of depression contributed to chronic absenteeism in past employment. Such information could also be disclosed to the WSBA by a third party, as when a court record obtained by the WSBA indicates that the applicant was ordered to attend anger-management classes or obtain substance abuse treatment.

Under the amended rules, when such information is affirmatively disclose further inquiry by WSBA admissions staff or the Character and Fitness Board must be narrowly tailored. Further questioning is only justified if the applicant has engaged in conduct that demonstrates an inability to meet any of the essential eligibility requirements. In addition, the inquiry must occur in stages. The first stage is to request a statement from the applicant; the second is to request a statement from applicant’s treatment providers;, and the third is a narrowly tailored request for medical records that provides access only to information reasonably necessary to assess the applicant’s ability to meet the essential eligibility requirements — only in those cases where statements from the applicant and his or her treatment providers do not resolve reasonable concerns about applicant’s ability to meet the essential eligibility requirements. The amended rules also require that the statement of the applicant’s treatment providers be accorded “considerable weight.” ¹⁷

As in the past, the Character and Fitness Board has the authority to order an independent medical examination (IME) of the applicant; however, an IME can only be ordered if all other levels of inquiry have been completed and only after testimony and evidence presented at the character and fitness hearing fails to resolve the Character and Fitness Board’s concerns. Under the amended rules, an applicant has 30 days to provide rebuttal information to any ordered IME from his or her treating physicians. ¹⁸

3 – Changes to questions on applications for admission

WSBA applications for admission no longer include questions about whether an applicant has “experienced, been diagnosed with, or undergone treatment” for any mental health condition or substance abuse. Instead, the focus is on whether the applicant has engaged in specific conduct that impacts the essential eligibility requirements. For example, there are now inquiries as to whether the applicant has been confronted, questioned, warned or asked or encouraged to resign or withdraw by an employer, supervisor or educator due to lack of truthfulness, excessive absences, failure to maintain confidentiality of information, etc.

4 – Updated nondiscrimination policy

The prior version of the rules specified factors the Character and Fitness Board could not consider, including racial or ethnic identity, sex, political beliefs, and others. ¹⁹ This led to some confusion as it was unclear whether those factors could be considered or raised by the Character and Fitness Board as a positive factor for the applicant — for instance, if an applicant suffered racial discrimination in her past but nevertheless persevered to obtain a law degree. The amended rules implement a nondiscrimination policy and clarify that when determining good moral character and fitness to practice law the WSBA and the Character and Fitness Board cannot discriminate against any applicant on the basis of the factors enumerated in Washington’s Law Against Discrimination, including the presence of a mental disability. ²⁰

Conclusion

The goal in enacting the amended APRs was to properly balance the federal and state protections afforded to people with disabilities and the corresponding obligation to ensure that all applicants have the requisite good moral character and fitness to practice law in a competent and professional manner. Consistent with the guidance from the DOJ, these modifications will ensure that all applicants, regardless of their disability status, have the essential eligibility requirements to practice law in our state.

A lengthier version of this article originally appeared in the Dec. 2016/Jan. 2017 issue of NWLawyer, published by the Washington State Bar Association (WSBA), and is reproduced here with the permission of the WSBA. The link to that article is:

http://nwlawyer.wsba.org/nwlawyer/dec_2016_jan_2017?pg=15#pg15